A man who drove through a climate protest blocking the Harbour Tunnel this week has copped a A$469 fine, while multiple members of the activist group were arrested. The protest was among a series of peak hour rallies in Sydney by Blockade Australia, in an effort to stop “the cogs in the machine that is destroying life on earth”.
But disruptive protest also consistently generates one negative response: attempts to criminalise it.
Tasmania, Victoria and New South Wales have all recently proposed or introduced anti-protest bills targeting environmental and climate activists. This wave of anti-protest legislation has been described as draconian and undemocratic.
Let’s take a look at how these laws suppress environmental protesters – and whether criminalisation actually works.
How do governments criminalise protest?
The criminalisation of environmental protest in Australia isn’t new.
Tasmania provides a compelling example. The Tasmania Workplaces (Protection from Protestors) Act 2014 sought to fine demonstrators up to $10,000 if they “prevent, hinder, or obstruct the carrying out of a business activity”. Described as a breach of the International Covenant on Civil and Political Rights, it was subsequently voted down by the Tasmanian Legislative Council.
The bill was resurrected in 2019, but also voted down, an outcome described by the Human Rights Law Centre as a “win for democracy”.
But yet again in 2022, the freedom to protest in Tasmania is under threat. The Police Offences Amendment (Workplace Protection) Bill 2022 proposes fines of up to $21,625 and 18 months jail for peaceful protest.
Activities such as handing out flyers, holding a placard or sharing a petition could fall within the offences.
Tasmania is not an outlier. After the Port of Botany and Sydney climate blockades in March this year, NSW passed the Roads and Crimes Legislation Amendment Bill 2022.
Similarly, the Andrews government in Victoria is introducing the Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill 2022, which raises penalties on anti-logging protest offences to $21,000 or 12 months imprisonment.
Other ways Australia criminalise protest
Legislation isn’t the only tool in the toolbox of protest criminalisation. The expansion of police and government discretionary powers is also often used. Examples include:
“move-on” orders restricting protesters’ access to public spaces or engagement in particular behaviours
on-the-spot fines, such as for the use of specific lock-on devices defined in Queensland legislation
surveillance, pre-emptive arrests and infiltration of landowners and anti-coal groups, including Blockade Australia
persistent attempts to silence environmental NGOs engaging in advocacy.
Corporations also use discretionary powers. Adani/Bravus coal mining company reportedly used private investigators to restrict Wangan and Jagalingou Traditional Owners’ access to their ceremonial camp.
It also reportedly bankrupted senior spokesperson Adrian Burragubba in 2019, sued one climate activist for intimidation, conspiracy and breaches of contract, surveilled his family, and is pursuing him for $600 million (now reduced to $17m) in damages.
Another tool for suppressing protest is the use of “othering” language. This language seeks to stigmatise activists, de-legitimise their concerns and frame them as threats to national security or the economy.
The Queensland Premier has described protesters as “extremists”, who were “dangerous, reckless, irresponsible, selfish and stupid”.
Why do governments feel the need to implement harsher penalties?
Non-profit organisations have also demonstrated the powerful influence of the fossil fuel industry, particularly in weakening Australian environmentalists’ protest rights.
But it’s not only civil sector groups and protesters sounding the alarm. Increased repression of our rights to engage in non-violent protest have also been voiced by lawyers, scholars and observers such as the United Nations Special Rapporteur.
Does criminalisation reduce protest?
But more than that, these strategies don’t appear to work.
Courts have used anti-protest legislation to instead highlight the importance of peaceful protest as a legitimate form of political communication. They have struck down legislation, released activists from remand, overturned unreasonable bail conditions and reduced excessive fines.
Police, too, have refused to remove cultural custodians from their ceremonial grounds.
And in general, research shows the public does not support repressive protest policing.
Politicians may be better served by focusing their efforts on this message, rather than attacking the messengers.
Robyn Gulliver is affiliated with The Commons Social Change Library.